The December 20 decision in the matter of Rena C. v. Colonial School District analyzes Section 1415 of the Individuals with Disabilities Education Act (IDEA), which governs reimbursement of prevailing fees, attorney fees to parents who prevail in special education litigation.
What The Law Says
The IDEA provides for an award of attorney fees to the party that prevails in special education litigation. A parent may be reimbursed when he or she obtains judicially sanctioned relief. A school entity may be reimbursed if the parent’s complaint was “frivolous, unreasonable, or without foundation,” or where the complaint was “presented for any improper purpose.”
A school entity can limit its liability to reimburse a parent’s attorney fees by making a settlement offer 10 or more days prior to the start of the due process hearing pursuant to 20 U.S.C. § 1415(i)(3)(D) (a “10-day offer”). If the parent rejects the offer, the parent may not be reimbursed for attorney fees incurred after that rejection unless the relief obtained through litigation was more favorable than the offer, or the parent was “substantially justified” in rejecting the offer.
The Facts in this Case
In 2013, the student’s parent, Rena, obtained a due process hearing officer decision that found the District’s offer of education inadequate and awarded tuition reimbursement retroactively and continuing until the District offered a FAPE. At the end of the 2013-14 school year, the District convened the IEP Team and offered an IEP.
Rena notified the District of her intention to continue the student’s enrollment in the private school and requested tuition reimbursement. Rena requested mediation, but cancelled it six weeks later after filing a new due process complaint.
On September 18, 2014, the District issued a 10-day offer in which it offered to pay the requested private school tuition. On October 8, the District provided a draft settlement agreement offering to pay four years of tuition and transportation.
Rena did not respond to the 10-day offer within 10 days, but later requested 5 years of tuition, based on the student repeating a grade in school, a fact which had not been previously disclosed to the District. On October 28, Rena claimed the 10-day offer was not valid because it did not constitute an offer of judgment, and did not address pendency and attorney fees. Nonetheless, the parties agreed to a 60-day conditional dismissal of the case to allow time for settlement discussions.
The case was reinstated after negotiations failed, and the hearing began in January, 2015. The hearing officer mediated a settlement agreement which was entered as a consent order on March 10, 2015. The order addressed private school tuition, 1:1 staffing for the student, transportation, and established pendency at the private school. The consent order did not address attorney fees.
Fifteen days after the consent order was entered, Rena’s attorney demanded payment of fees, described as “a substantial five figure offer.” The District offered to pay fees incurred through the September 18, 2014 10-day offer. A week later, Rena filed a petition for reimbursement of attorney fees in federal court.
The Decision
The Court reviewed the facts and the law in detail. The essential conclusions were that the District’s 10-day offer was valid; Rena did not obtain more favorable relief by continuing to litigate and was not substantially justified in rejecting the offer; and the attorney’s fee demand was limited in time as well as to a reasonable hourly rate. The Court’s findings that are relevant to future matters are as follows:
10-day offer and related issues
A school entity’s offer must be made at least 10 days prior to the hearing to provide relief from claims for attorney fee reimbursement. The purpose of this provision is to motivate schools to resolve placement concerns sooner than later, for the benefit of the student. Similarly, the limitation on parent attorney fee reimbursement is designed to ensure prompt resolution of disputes and avoid unnecessarily high fees. The school’s offer does not have to be made in a specific format and does not have to be pre-approved by the school board. The school board cannot act on a settlement until the parent indicates that the offer is acceptable.
An offer to pay private school tuition must be carefully presented. Pendency, or “stay put” attaches to that school unless the offer is specifically limited in scope. Pendency is not established if the school’s offer limits tuition payments to a specific timeframe and/or reserves the possibility of public school placement in the future.
If the 10-day offer is rejected, or not accepted within 10 days, the school entity is not bound by it. Further, the school has no obligation to reinstate the 10-day offer later.
Attorney fee reimbursement
Determining the amount due for attorney fee reimbursement is a two-step process. First, the Court reviews invoices to decide whether the amount of time spent on the litigation was reasonable. Second, the Court decides whether the hourly rate imposed is reasonable, based on the rates charged by other attorneys in the community with similar skill, experience and reputation.
Here, Rena’s attorney relied on several published lists that identify hourly rates for attorneys based on years of experience. Notably, the Court determined that the fee schedule published by Community Legal Services is inappropriate for determining hourly rates in IDEA cases. The schedule is based only on years of experience, and does not consider years practicing in a specific area of law, level of participation in a case, or reputation in the field. The other lists presented by Rena’s attorney did not reflect rates charged by attorneys in the Philadelphia area. The Court granted an hourly rate or $385.00 in this case.
The Court determined that reimbursement was due only for work done through September 28, 2014, 10 days after the District’s settlement offer. As noted above, the Court found that the parent did not obtain more favorable relief and was not justified in rejecting the offer. Further, the Court found that Rena had unnecessarily protracted the litigation.
Bottom Line for Schools
School entities should consult with their legal counsel soon after receiving a due process complaint to discuss the parameters of anticipated liability and whether to issue a settlement offer. This case demonstrates the clear benefits of these efforts to limit the school’s liability for attorney fee reimbursement.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.
